January 29, 2011
Achutti on Restorative Justice
Daniel Achutti (Institute for Criminology and Alterity has posted The Strangers in Criminal Procedure: Restorative Justice as a Possibility to Overcome the Simplicity of the Modern Paradigm of Criminal Justice on SSRN. Here is the abstract:
The present paper addresses the crisis of penal procedure in the contemporary society from its epistemological basis to, then, present restorative justice as a concrete alternative to the traditional criminal procedure. The intention is to describe how criminal procedure got established since its modern scientific roots and, then, to show the impossibility of a satisfactory management of social conflicts according to its standardized rules. After it, is argued that restorative justice is able to better deal with social conflicts than criminal procedure, once that system does not have standardized rules and allows the stakeholders to decide the situation according to their own deliberation, instead of being obliged to follow a decision from another person, usually a judge.
January 28, 2011
Pabsdorff, Rytterbro, Sambou & Uotila on Victim-Offender Mediation
Mari-Louise Pabsdorff (pictured), Lise-Lotte Rytterbro , Saija Sambou and Erika Uotila (University of Oslo - Department of Criminology and Sociology of Law , Stockholm University , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted Victim-Offender Mediation: Observations from Scandinavia (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011) on SSRN. Here is the abstract:
The focus of this article is the discourse between parties and mediator(s) in Victim-Offender Mediation in Scandinavia. The analysis show that mediation talk is concentrated on what happened in the actual crime situation, and what the parties and other persons present at the time did or did not do. Different "accounts" are used actively by the parties, to excuse or justify their behaviour. The explanations for crime are thus primarily found on an individual level, leaving societal issues out. A normative and evaluative inquiry of crimes and why crimes occur plays a minimal (if any) role in VOM in Scandinavia.
January 27, 2011
Federalist Society Criminal Law and Procedure Practice Group facebook page
"An Equilibrium-Adjustment Theory of the Fourth Amendment"
Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation. Constitutional protection varies dramatically based on seemingly arcane distinctions.
This Article introduces a new theory that explains and justifies both the structure and content of Fourth Amendment rules: The theory of equilibrium-adjustment. The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection. Existing Fourth Amendment law therefore reflects many decades of equilibrium-adjustment as facts change. This simple argument explains a wide range of puzzling Fourth Amendment doctrines including the automobile exception; rules on using sense-enhancing devices; the decline of the “mere evidence” rule; how the Fourth Amendment applies to the telephone network; undercover investigations; the law of aerial surveillance; rules for subpoenas; and the special Fourth Amendment protection for the home.
The Article then offers a normative defense of equilibrium-adjustment. Equilibrium-adjustment maintains interpretive fidelity while permitting Fourth Amendment law to respond to changing facts. Its wide appeal and focus on deviations from the status quo facilitates coherent decisionmaking amidst empirical uncertainty and yet also gives Fourth Amendment law significant stability. The Article concludes by arguing that judicial delay is an important precondition to successful equilibrium-adjustment.
Kempinen on Problem-Solving Courts
Ben Kempinen (University of Wisconsin Law School) has posted Problem-Solving Courts and the Defense Function: The Wisconsin Experience (Hastings Law Journal, Vol. 62, No. 5, 2011) on SSRN. Here is the abstract:
Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol, substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This paper suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel play in communities with problem-solving courts the promise of this approach for appropriate offenders can be realized without compromising the core duties that counsel owes his client. The template proposed here for reconciling these conflicting interests is based in large part on the work and experiences of shareholders in Wisconsin problem-solving courts. It is further suggested that the proposed ABA Standards for the Defense Function fail to address most, if not all, of the unique defense function issues presented by the problem-solving court model.
January 26, 2011
Chao on Interpreters
David H. Chao has posted Bifurcated Review of Interpreter Determinations Under the Court Interpreters Act (Connecticut Public Interest Law Journal, Vol. 10, No. 1, Fall-Winter 2010) on SSRN. Here is the abstract:
Since the passage of the Court Interpreters Act in 1978, defendants have had a statutory right to a language interpreter when the district court determines that the defendant’s language barrier inhibits his comprehension. When defendants have appealed their convictions, claiming that the court erroneously denied them an interpreter, courts of appeals review the lower court determinations for clear error or abuse of discretion. This Article argues that this deferential standard is not proper for reviewing interpreter determinations under the Act, which are mixed questions of law and fact. Instead, appellate courts should review findings of fact for clear error and legal conclusions de novo.
Ribstein on Prosecuting Crimes by Corporate Agents
Significant questions have been raised concerning the efficiency of criminalizing agency costs and the problems of excessive prosecution of crimes committed by corporate agents. This paper provides a new perspective on these questions by analyzing them from the perspective of agency cost theory. It shows that there are close analogies between the agency costs associated with prosecutors in corporate crime cases and those of the agents being prosecuted. The important difference between the two contexts is that prosecutors are not subject to many of the standard mechanisms for dealing with corporate agency costs. An implication of this analysis is that society must decide if prosecuting corporate agents is worth incurring the agency costs of prosecutors.
January 25, 2011
Torture, Acquitted Counts Not Enough to Reduce Sentence for Ex-Detainee
From the New York Times:
Ahmed Khalfan Ghailani, the first former detainee at Guantánamo Bay, Cuba, to be tried in the civilian court system, was sentenced to life in prison on Tuesday for his role in the 1998 bombings of two United States Embassies in East Africa.
. . .
The defense had asked the judge for a lesser sentence, citing the extraordinary circumstances of Mr. Ghailani’s case, like the years he spent in detention in a so-called black site run by the C.I.A., where his lawyers say he was tortured.
But the judge, Lewis A. Kaplan of Federal District Court in Manhattan, said that no matter how Mr. Ghailani was treated while in detention, “the impact on him pales in comparison to the suffering and the horror that he and his confederates caused.”
. . .
Although Mr. Ghailani was acquitted of more than 280 charges of murder and conspiracy, the judge focused on the solitary conviction of conspiracy to destroy government buildings and property.
Westen on Self Incrimination
Peter K. Westen (University of Michigan Law School) has posted Answer Self-Incriminating Questions or Be Fired (American Journal of Criminal Law, Vol. 37, No. 2, p. 97, Spring 2010) on SSRN. Here is the abstract:
Can a public employee be fired for refusing to answer self-incriminating questions or be prosecuted based on answers he gives under threat of firing?
These are questions that underlie a 2009 U.S. District Court decision dismissing prosecutions against the Blackwater employees for killing Iraqi civilians in Baghdad in September, 2007. They are also questions that the U.S. Supreme appeared to answer in a series of five cases from 1967-77. Yet the lower federal remain sharply divided about what those five decisions mean and, specifically, about whether the government must inform public employees that they possess immunity should they respond to a threat of discharge by answering self-incriminating questions.
I argue that the latter issue is fractious because it manifests doctrinal instability in the Supreme Court’s Fifth Amendment jurisprudence. The doctrinal instability stems from Garrity v. New Jersey, the only case in which a public employee responded to the threat of discharge by making self-incriminating statements rather than remaining silent. I believe that Garrity was wrongly decided at the time because it overlooked the legal significance of facts that distinguished it from the other cases. However, even if Garrity was correctly decided in 1967, it has been superseded by subsequent Supreme Court decisions. The subsequent decisions stand for the proposition that, with a few exceptions which are inapplicable in public employee cases, a person who is wrongly pressured to incriminate himself forfeits the protections of the privilege if he responds by making incriminating statements rather than remaining silent.
Once Garrity is seen to have lost vitality, the issue that divides the lower federal courts becomes moot. Public employees need not be advised that they possess Garrity immunity in the event they incriminate themselves because no such immunity exists. To be sure, the government is prohibited from firing employees merely for invoking the privilege. However, the government can do so if it first grants them formal immunity. And even it does not grant them formal immunity, it can fire them based upon inferences of guilt that arise from their refusing on Fifth Amendment grounds to answer specific, job-related questions.
January 24, 2011
Monasky on Comprehensive Prostitution Reform
Heather Monasky has posted On Comprehensive Prostitution Reform: Criminalizing the Trafficker and the Trick, But Not the Victim - Sweden’s Sexköpslagen in America (William Mitchell Law Review, Vol. 37, No. 4, Forthcoming) on SSRN. Here is the abstract:
Sex trafficking of women and children - one of the most urgent human rights violation confronting the world today - incorporates prostitution into its end product. While the world focuses on the nature of prostitution - i.e., forced (trafficked) or voluntary (sex worker) - the author‘s research indicates that few women in prostitution choose that path.
In 1999, Sweden became the first country in the world to partially decriminalize prostitution by criminalizing only the purchaser. The Swedish approach - known as -The Swedish Model‖ - offers social services to women in prostitution. The Swedish Government chronicled the results of the Swedish Model in a report released in July 2010. While sex workers‘ rights groups from around the world have attacked The Swedish Model, the Swedish Government claims that it has decreased the incidence of sex trafficking and prostitution in Sweden. Norway and Iceland adopted this approach, and other countries currently consider the model.
The United States‘ (U.S.) implementation of The Swedish Model would further recent American practices to combat commercial sexual exploitation. The United States should put victims first and import The Swedish Model.
Today's criminal law/procedure cert grants
Summaries from ScotusBlog, which includes links to papers and opinions below:
- Howes v. Fields: Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.
- Reynolds v. United States: Validity of the Sex Offender Registration and Notification Act and its implementing regulations.
Summary reversal in cases involving federal habeas relief based on alleged failure to apply state parole standard
The case is Swarthout v. Cooke. In part:
In granting habeas relief based on its conclusion that the state courts had misapplied California’s "some evidence" rule, the Ninth Circuit must have assumed either that federal habeas relief is available for an error of state law, or that correct application of the State’s "some evidence" standard is required by the federal Due ProcessClause. Neither assumption is correct.
January 23, 2011
Top-Ten Recent SSRN Downloads
|1||350||Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts
Gray Proctor, Nancy J. King,
Fourth Circuit Court of Appeals, Vanderbilt University - Law School,
Date posted to database: November 11, 2010
|2||310||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010
|3||208||Theorizing Mental Health Courts
E. Lea Johnston,
University of Florida - Fredric G. Levin College of Law,
Date posted to database: November 21, 2010
|4||187||The Age of Conflict: Rethinking Childhood, Law, and Age Through the Israeli-Palestinian Case
London School of Economics - Law Department,
Date posted to database: December 8, 2010
|5||181||Plan Now or Pay Later: The Role of Compliance in Criminal Cases
Charlotte Simon, Ryan D. McConnell, Jay Martin,
University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 11, 2011 [new to top ten]
|6||177||The Substance-Procedure Relationship in Criminal Law
Donald W. Dripps,
University of San Diego - School of Law,
Date posted to database: December 8, 2010 [5th last week]
|7||169||Who May Be Held? Military Detention Through the Habeas Lens
University of Texas School of Law,
Date posted to database: December 16, 2010
Last Revised: January 13, 2011
|8||135||Is the Fourth Amendment Relevant in a Technological Age?
Vanderbilt University - Law School,
Date posted to database: January 10, 2011 [new to top ten]
|9||131||Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction
Deborah W. Denno,
Fordham University School of Law,
Date posted to database: November 15, 2010 [8th last week]
|10||124||Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases
Stanley A. Goldman,
Loyola Marymount University - Loyola Law School Los Angeles,
Date posted to database: November 26, 2010 [9th last week]